Angela Merriman v. Brian Merriman ( 2010 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 30, 2010 Session
ANGELA MERRIMAN v. BRIAN MERRIMAN
Appeal from the Circuit Court for Jefferson County
No. 22,350 O. Duane Slone, Judge
No. E2010-00013-COA-R3-CV - FILED SEPTEMBER 28, 2010
Angela Merriman (“Petitioner”) filed for and obtained an ex parte order of protection against
her husband, Brian Merriman (“Respondent”). Pursuant to statute, a hearing was conducted
on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code
Ann. § 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order
of protection; or (2) to extend the order of protection for a definite period of time not to
exceed one year. With respect to taxing costs, Tenn. Code Ann. § 36-3-617(a) expressly
prohibits taxing costs against a victim, even if the order of protection is dissolved. If the
order of protection is extended, the costs must be taxed against the respondent. In the present
case, following the hearing on whether to extend or dissolve the order of protection, the Trial
Court instead entered a mutual restraining order and taxed costs equally to both parties.
Because neither action was authorized by statute, we vacate the judgment of the Trial Court
and remand for further proceedings consistent with this Opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Circuit Court Vacated; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
Deborah A. Yeomans, Johnson City, Tennessee, for the Appellant, Angela Merriman.
No brief filed by the Appellee, Brian Merriman.
OPINION
Background
On November 18, 2009, Petitioner filed a petition for ex parte order of
protection against Respondent. An ex parte order of protection was entered by the Trial
Court and a hearing was scheduled for December 4, 2009. Following that hearing, the Trial
Court entered an order stating as follows:
This cause came to be heard on the 4th day of December,
2009, upon the Petition of Angela Merriman for an order of
protection against Defendant Brian Merriman.
Upon hearing the proof in the cause, the Court finds . . .
[that] hostility exists between the parties.
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that both parties are enjoined and restrained from
acts of threats of violence against the other. The costs of the
cause are taxed against both parties equally for which execution
shall issue if necessary.
Petitioner filed a timely appeal and raises two issues, which we quote verbatim
from her brief:1
I. Whether the . . . [Trial Court] erred in issuing a mutual
restraining order instead of an Order of Protection?
II. Whether the . . . [Trial Court] erred in taxing costs of the
mutual restraining order equally?
Discussion
The factual findings of the Trial Court are accorded a presumption of
correctness, and we will not overturn those factual findings unless the evidence
preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,
727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de
novo standard of review, according no deference to the conclusions of law made by the lower
1
The Respondent, Brian Merriman, neither filed a brief nor otherwise participated in this appeal.
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courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710
(Tenn. 2001).
As relevant to this appeal, Tenn. Code Ann. § 36-3-605(a) & (b) provide as
follows:
(a) Upon the filing of a petition under this part, the courts may
immediately, for good cause shown, issue an ex parte order of
protection. An immediate and present danger of abuse to the
petitioner shall constitute good cause for purposes of this
section.
(b) Within fifteen (15) days of service of such order on the
respondent under this part, a hearing shall be held, at which time
the court shall either dissolve any ex parte order that has been
issued, or shall, if the petitioner has proved the allegation of
domestic abuse, stalking or sexual assault by a preponderance of
the evidence, extend the order of protection for a definite period
of time, not to exceed one (1) year, unless a further hearing on
the continuation of such order is requested by the respondent or
the petitioner; in which case, on proper showing of cause, such
order may be continued for a further definite period of one (1)
year, after which time a further hearing must be held for any
subsequent one-year period. Any ex parte order of protection
shall be in effect until the time of the hearing, and, if the hearing
is held within fifteen (15) days of service of such order, the ex
parte order shall continue in effect until the entry of any
subsequent order of protection issued pursuant to
§ 36-3-609. . . .
Tenn. Code Ann. § 36-3-605(a) & (b) (Supp. 2009).
Petitioner correctly points out that pursuant to the above statute, at a hearing
following entry of an ex parte order of protection, a trial court has two options: (1) to
dissolve the ex parte order of protection; or (2) extent the order of protection for a definite
period not to exceed one year. Entering a mutual restraining order, as was done in the
present case, is not one of the statutory options available to a trial court. Accordingly, we
vacate the judgment of the Trial Court and remand this case for further proceedings, as the
Trial Court deems necessary, at which time the Trial Court must either dissolve the ex parte
order of protection or extend the order of protection for a period of time not to exceed one
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year. In the meantime, the ex parte order of protection remains in effect until the further
hearing on the continuation of the order.
Petitioner’s second issue is her claim that the Trial Court erred when it taxed
the costs equally against both parties. As relevant to this appeal, Tenn. Code Ann. § 36-3-
617 provides as follows:
(a) Notwithstanding any other law to the contrary, no victim
shall be required to bear the costs, including any court costs,
filing fees, litigation taxes or any other costs associated with the
filing, issuance, registration, service, dismissal or nonsuit,
appeal or enforcement of an ex parte order of protection, order
of protection, or a petition for either such order, whether issued
inside or outside the state. If the court, after the hearing, issues
or extends an order of protection, all court costs, filing fees,
litigation taxes and attorney fees shall be assessed against the
respondent.
Tenn. Code Ann. § 36-3-617(a) (Supp. 2009).
Again, the relevant statute leaves a trial court little maneuvering room. The
statute indicates that no victim shall be required to pay the costs, even if the order of
protection is dissolved. If the order of protection is extended, then the statute requires the
respondent be assessed with the costs. Accordingly, on remand, the Trial Court shall not tax
any of the costs to Petitioner. If the ex parte order of protection is extended, then the costs
shall be taxed to Respondent.
Conclusion
The judgment of the Trial Court is vacated, and this cause is remanded to the
Circuit Court for Jefferson County for further proceedings consistent with this Opinion and
for collection of the costs below. Costs on appeal are taxed to the Appellee, Brian Merriman,
for which execution may issue, if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
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